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Paid Parental Leave VA Central Office August 28, 2020 Washington, DC OFFICE OF THE CHIEF HUMAN CAPITAL OFFICER (OCHCO) BULLETIN SUBJECT: Paid Parental Leave This OCHCO Bulletin is to notify Human Resources offices of the Department of Veterans Affairs (VA) policy guidance regarding paid parental leave. In addition, the attachments to this bulletin provide the paid parental leave request form, work obligation agreement, and frequently asked questions. Please share this information with your employee population. Background. The Federal Employees Paid Leave Act of 2019 (Public Law 116-92; Act) provided a new leave category, referred to as “paid parental leave”. This new leave entitlement is available to any Federal employee who is eligible for Family and Medical Leave Act (FMLA) under Title II and has a qualifying birth or placement on or after October 1, 2020. The new law amended the FMLA provisions in title 5, United States Code, to provide up to 12 weeks of paid parental leave to covered Federal employees in connection with the birth or placement (for adoption or foster care) of a child occurring on or after October 1, 2020. The Act modified section 6382 in title 5 of the United States Code and subpart L in the Code of Federal Regulations. The Act also added a new subpart to the Code of Federal Regulations (subpart Q). Paid parental leave is a benefit provided through substitution of unpaid leave under FMLA. VA Handbook 5011, Part III, Chapter 2, paragraph 18, and Chapter 3, paragraph 7d provide that the Office of Personnel Management regulations will be used to implement the FMLA and therefore the provisions of paid parental leave for VA employees. Eligibility. To be eligible for paid parental leave, an employee must be eligible for leave under the FMLA. Therefore, an employee must meet all FMLA eligibility requirements, including the following: • Has completed at least 12 months of Federal service (not required to be 12 recent or consecutive months) as – • an employee, as defined under 5 U.S.C. 6301(2), excluding any service as an employee under 5 CFR 630.1201(b)(2); • an employee of the Veterans Health Administration appointed under title 38 U.S.C. in occupations listed in 38 U.S.C. 7401(1); • a “teacher” or an individual holding a “teaching position,” as defined in section 901 of title 20 U.S.C.; or • an employee identified in section 2105(c) of title 5 U.S.C. who is paid from non- appropriated funds. • An employee carrying out screening functions who is appointed under section 111(d) of Public Law 107-71 (49 U.S.C. 44935). • An employee performing covered active duty (as defined in 5 U.S.C. 6381(7)(B)) that interrupts civilian service due to a qualifying call or order for deployment to a foreign country as a member of the National Guard or Reserves, to the extent that such active duty is not already creditable service as an employee listed in the categories above. • Has a part-time or full‐time work schedule (intermittent work schedule employees not eligible); and • Has an appointment of more than 1 year in duration (employees with temporary appointments not to exceed 1 year are ineligible) Note: An employee who is initially ineligible for FMLA at the time of a qualifying birth or placement of a child may later establish FMLA leave eligibility during the 12-month period following the birth or placement and use paid parental leave during that time period. Generally, this circumstance would apply when an employee becomes eligible for FMLA upon completing the required 12 months of service or by changing to a qualifying work schedule or appointment. Once FMLA eligibility is established and FMLA is invoked, an employee may substitute paid parental leave in connection with a qualifying birth or placement within the 12-month period following the birth or placement. Qualifying Births or Placements. An employee must have a qualifying birth or placement event (i.e. birth or placement for adoption or foster care) of the employee’s child that occurs on or after October 1, 2020. A qualifying birth or placement means the employee has a current parental role in connection with the child whose birth or placement was the basis for granting FMLA unpaid leave. OPM defines birth as the delivery of a living child. When the term “birth” is used in connection with the use of leave under this subpart before birth, it refers to an anticipated birth. Placement is defined as a new placement of a son or daughter with an employee for adoption or foster care. This excludes the adoption of a stepchild or a foster child who has already been a member of the employee's household and has an existing parent-child relationship with an adopting parent. When the term “placement” is used in connection with the use of leave under this subpart before placement has occurred, it refers to a planned or anticipated placement. Leave Entitlement. Paid parental leave may be substituted for any FMLA unpaid leave granted for birth of a son or daughter, or placement of a son or daughter with the employee for adoption or foster care. The amount of paid parental leave that is available for such purposes is 12 administrative workweeks in connection with the birth or placement involved. Entitlement to paid parental leave is triggered by the occurrence of a birth or placement. Paid parental leave is available as long as an employee has a continuing parental role in connection with the child whose birth or placement was the basis for the leave entitlement. If an employee ceases to provide care for a son or daughter, the employee is no longer eligible for paid parental leave. Conversion of weeks to hours. For employees who are charged leave on an hourly basis (including fractions of an hour), the 12 administrative workweeks is converted to hours based on the number of hours in the employee's scheduled tour of duty on the date the employee begins a period of using paid parental leave as follows: (1) For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours. (2) For a full-time employee with an uncommon tour of duty (firefighters, etc.) the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's biweekly scheduled tour of duty (or 6 times the average hours if the biweekly tour hours vary over an established cycle). Example: if an employee has an uncommon tour consisting of six 24-hours shifts (144 hours) per biweekly pay period, the amount would be 864 hours. (3) For a part-time employee, the hours equivalent of 12 administrative workweeks is determined by multiplying 6 times the number of hours in the employee's scheduled tour of duty over a biweekly pay period. Example: if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours. Conversion of weeks to days. For employees charged leave on a daily basis, the days equivalent of 12 administrative workweeks must be determined based on the average number of workdays in the employee’s established tour of duty over a biweekly pay period. Example: if an employee had 8 workdays each biweekly pay period, the days equivalent of 12 administrative workweeks would be 48 days. Change in Work Schedule. If an employee changes work schedules during the 12-month period after the date of a given birth or placement, and the employee has not used the full allotment of paid parental leave, the remaining balance of paid parental leave must be recalculated based on the new tour of duty. Example: a regular full-time employee with a balance of 120 hours of unused paid parental leave converts to a part-time schedule of 20 hours per week. The balance would be recalculated to be 60 hours (40 hours / 80 hours x 120 = 60 hours). Leave Usage. Paid parental leave may not be used prior to the birth or placement involved even if the employee was granted FMLA unpaid leave for periods prior to the birth or placement event. Although entitlement is triggered based on the date of birth or placement, the employee may invoke FMLA and substitute paid parental leave at any time during the 12-month period following the qualifying birth or placement event. An employee has a 12-month period beginning on the date of the birth or placement in which to use the 12 administrative workweeks of paid parental leave. If an employee has any unused balance of paid parental leave that remains at the end of the 12-month period following the birth or placement involved, the entitlement to the unused leave ends at that time. No payment may be made for unused paid parental leave that has expired. Paid parental leave may not be considered annual leave for purposes of making a lump-sum payment for annual leave or for any other purpose. An employee cannot be required to use annual leave, sick leave, or other paid leave to their credit as a condition to be met before the employee uses paid parental leave. When an employee requests to use annual leave or sick leave without invoking FMLA unpaid leave, such requests will be subject to management’s discretion on approving or disapproving the timing of when the leave may be used. Note: sick leave is an employee entitlement, therefore an employee generally may not be denied sick leave outside of FMLA for a sick leave purpose as authorized in 5 CFR 630.401.
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